A pseudonymous blog about Canadian law and politics.
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Wednesday, July 23, 2014

Cushing v. Dupuy

The enduring issue in Cushing v. Dupuyconcerned whether a provision in the federal Insolvency Act making certain court judgements "final" meant the Judicial Committee could not hear an appeal. The Committee held that the effect of the provision was to exclude an appeal to the JCPC as of right, but did not effect the ability of the Committee to give leave. The rationale was that giving leave was an aspect of the Crown Prerogative, which could only be extinguished by a statute if the statute was explicit. The editor of the Appeal Cases court reports added "quaere, what powers may be possess by the Parliament of Canada so to do", a note that anticipated battles in the twentieth century.

So far, we have been able to avoid talking about the tricky ontological issues about what the Judicial Committee of the Privy Council really was. We were able to get away with just treating it like the final court of appeal for the Empire, which nineteenth century Canada was very much a part of. In the twentieth century, that gets embarrassing, but no one was worried about that when Britannia still ruled the waves and Gilbert and Sullivan were at the height of their creative powers. Why not have your final court in London? As we will see, the part of Canada least enthusiastic about dying to keep China British -- Quebec -- was even less enthusiastic about having the relative powers of the federal and provincial governments decided by a tribunal located in Ottawa and picked entirely by federal Prime Ministers. But that's all in the future.

But whatever its merits as an impartial and imperial adjudicator, the Judicial Committee was built on a pile of legal fiction. In theory, litigants did not appeal to the Committee in accordance with some procedure set out in a statute. The legal fiction was rather that the Queen Insurance Company or Madame Belisle, as a subject of Queen (and now Empress) Victoria, was appealing to the batty old Hanoverian herself. And as the descendant and ultimate successor of a Norman bastard with above-average luck and leadership skills, she had the prerogative right to entertain an appeal from one of her subjects that her judges had erred.

Now nineteenth century Brits were sharp enough to see that leaving deciding the fine points of insolvency law to a grumpy matron from a line of notoriously plodding intellects was not fair either to her or to the contending parties. Shortly before she came to the throne, Parliament had enacted the Judicial Committee Act, which provided that members of the monarch's privy council who had "high judicial office" would constitute a judicial committee, and the monarch could refer matters to them, and they would advise him or her about them. This was already standard practice when colonial appeals were taken to the monarch, and it was already invariably the case that the monarch would just rubber stamp whatever the Committee advised.

However, some peculiar features arose from this fiction. For example, unlike the House of Lords, which was the final court of appeal for England and Wales, and whose judicial functions were exercised by largely the same people, the Judicial Committee always gave a single set of reasons, without dissent, since it would not be seemly for Her Majesty to receive conflicting advice about what to do. This was all good, since dissents and concurring judgements are really exercises in ego, and confuse lawyers.

The legal fiction had more controversial consequences in that it implied that any restriction on the jurisdiction of the Judicial Committee was, in legal theory, a restriction on the traditional prerogatives of the Queen. The constitutional battles of the seventeenth century had confirmed that Parliament could curtail Crown prerogatives, but went along with a presumption (remaining to this day) that it would not do so unless it said so expressly.

Sir Montague Smith reasoned that the Act must have intended to eliminate appeals as of right, but it did not explicitly eliminate the "Queen's" power to give leave. It therefore remained. The Committee gave leave, but it didn't help the appellant, since they ruled against him anyway. Or rather, humbly advised Her Majesty that her colonial court knew what it was talking about. Since the underlying issue was a secured transaction question under the Civil Code, which could only confuse common lawyers, that was a good move.